RONALD HIGHT, JR. v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RONALD HIGHT JR.,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D16-4261

[August 8, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Glenn D. Kelley, Judge; L.T. Case No. 502013CF000220A.

Carey Haughwout, Public Defender, and Benjamin Eisenberg,

Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, Christopher Baum,

Deputy Solicitor General, Tallahassee, and Don M. Rogers, Assistant

Attorney General, West Palm Beach, for appellee.

LEVINE, J.

In 2012, appellant was charged with second-degree murder.

Appellant filed a motion to dismiss under section 776.032 of the Stand

Your Ground law and a pre-trial immunity hearing took place in 2014.

After the denial of his motion, appellant went to trial and was convicted

of a lesser included offense, manslaughter, in 2016. Appellant appealed

his conviction. During the pendency of his appeal, the legislature

amended section 776.032 by adding subsection (4) which took effect

upon the amendment becoming law on June 9, 2017. This amendment

shifted the burden of persuasion from the defendant to the state and

additionally changed the burden of proof utilized from preponderance of

the evidence to clear and convincing evidence.

Thus, we are confronted with this dispositive issue: Are the changes

in subsection (4) procedural or substantive? Should we apply the

changes retroactively or prospectively from the date the changes became

law? We find that the amendment adding subsection (4) is a substantive

change to the law, and as such, applies only prospectively from the date

of enactment. We therefore find that appellant is not entitled to a new

Stand Your Ground hearing pursuant to the amendment, and as such,

we affirm. We find the other issues raised by appellant to be without

merit and we affirm on those grounds without discussion.

Appellant was charged with second-degree murder of the victim, Craig

Rivera. Appellant filed a motion to dismiss based on immunity under

section 776.032 of the Stand Your Ground law. The case subsequently

proceeded to a pre-trial immunity hearing.

The victim was appellant’s boss. The victim regularly drove appellant

to and from work. On the day in question, appellant had a birthday

party at appellant’s house. The victim arrived at the party drunk. The

partygoers were gathered outside around the fire pit when the victim

became increasingly agitated and angry as the victim received repeated

telephone calls from his children. Appellant testified that he retrieved his

gun because the victim’s behavior scared him. People began to leave due

to the victim’s behavior. Appellant and the victim remained outside.

According to appellant, he and the victim were talking when the

victim said he was going to “f--k” appellant up. The victim ran towards

him and appellant pulled out the gun. The victim said, “I’m not scared of

that” and went to hit appellant so appellant shot him. On cross-

examination, appellant admitted the victim had never been physically

violent towards him.

Appellant’s brother testified that he went outside just as the shooting

occurred. According to the brother, appellant looked “petrified and

scared,” and the victim’s arm was “in the process of reaching out” when

appellant shot him.

In a videotaped statement to police, appellant described the victim as

a father figure, his best friend, and someone he looked up to. Appellant

also described the victim as violent. Appellant claimed that the victim

regularly threatened him and that appellant remained friends with the

victim only to keep his job.

During the police interview, appellant stated that he and the victim

were talking when the victim told appellant that he was going to “f--k”

him up. The victim then rushed towards appellant with his fists balled

up to fight so appellant shot him. Appellant twice demonstrated to the

police what transpired. In both instances, appellant demonstrated that

the victim rushed towards him with his arms down by his sides. During

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the second instance, appellant demonstrated that the victim’s shoulder

bumped appellant’s chest.

At one point in the interview, appellant stated that he had the gun in

his pocket because the victim had threatened to hit him earlier in the

day. At another point in the interview, appellant said that he went into

the house and put the gun in his pocket after the victim told appellant he

was going to “f--k” him up.

After the Stand Your Ground immunity hearing, the trial court

entered an order denying the motion to dismiss. The trial court found

that the evidence established that the victim was a “bully” and that

appellant armed himself “because of on-going events with [the victim].”

Based on appellant’s videotaped statement, the court found that the

contact between appellant and the victim was “the equivalent of a chest

bump.” “While [the victim] may have moved his hands forward, there

was no evidence to support the conclusion that [the victim] was throwing

a punch.” The testimony of appellant’s brother was “consistent with the

shoulder bump described by [appellant].”

The trial court noted that the victim had never struck appellant

before. The court found that “[t]he facts of the encounter support a

machismo display by [the victim], but not a demonstrable attempt to

physically harm the Defendant.” After characterizing the case as a “close

call,” the court concluded that appellant had not met his burden of

proving by a preponderance of the evidence that a reasonable person

would conclude that deadly force was necessary to prevent imminent

death or great bodily harm.

The case proceeded to a five-day trial. The jury found appellant guilty

of the lesser included offense of manslaughter. Appellant appealed.

Appellant argues that this statutory amendment should apply since

he claims the changes to the burden of proof were procedural in nature

and thus should be applied retroactively. The state argues that the

statute did not go into effect until June 9, 2017, which was after the

commission of the crime, after the pre-trial Stand Your Ground immunity

hearing, and even after the notice of appeal was filed in this case. The

state further argues that the amendment imposed a new legal burden

and thus is a substantive change that applies only prospectively from the

date of enactment.

We review whether a statute applies retroactively under the de novo

standard. Smiley v. State, 966 So. 2d 330, 333 (Fla. 2007).

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In 2005, the Florida Legislature enacted the Stand Your Ground law

and by statute eliminated the common law duty of an individual to

retreat before using force in self-defense. § 776.012(1), Fla. Stat.; Kumar

v. Patel, 227 So. 3d 557, 559 (Fla. 2017). The statute also provides

immunity for those who lawfully use force in self-defense. § 776.032,

Fla. Stat. The Florida Supreme Court subsequently determined in

Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015), that a defendant has

the burden of proof in a pre-trial Stand Your Ground immunity hearing

and that the defendant has to prove by a preponderance of evidence that

the defendant’s “use of force was justified, as specified by statute.”

Following the issuance of Bretherick, and while this appeal was

pending, the Florida Legislature amended section 776.032 and added

subsection (4), which states:

In a criminal prosecution, once a prima facie claim of self-

defense immunity from criminal prosecution has been raised

by the defendant at a pretrial immunity hearing, the burden

of proof by clear and convincing evidence is on the party

seeking to overcome the immunity from criminal prosecution

provided in subsection (1).

The legislature provided that “[t]his act shall take effect upon becoming a

law,” which occurred when the governor signed the bill into law on June

9, 2017. Ch. 2017-72, § 1-2, Laws of Fla.

The amendment shifted the burden of persuasion from the defendant

to the state. The amendment also changed the quantum of proof

required from preponderance of the evidence previously required of the

defendant to clear and convincing evidence now required of the state,

after the defendant makes a prima facie claim of self-defense immunity.

We find that the amended subsection (4) of the Stand Your Ground

statute does not apply in this case. The crime, the Stand Your Ground

hearing, and the trial all occurred before the June 2017 subsection

became effective. Thus, the amendment has no retroactive effect since it

is a substantive, not a procedural, change in the law.

The Florida Supreme Court has given guidance when determining

“whether the statute constitutes a procedural/remedial change or a

substantive change in the law.” Smiley, 966 So. 2d at 334. The

“presumption in favor of prospective application generally does not apply

to ‘remedial’ legislation; rather, whenever possible, such legislation

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should be applied to pending cases in order to fully effectuate the

legislation’s intended purpose.” Id. (quoting Arrow Air, Inc. v. Walsh, 645

So. 2d 422, 424 (Fla. 1994)). However, “a statute that achieves a

‘remedial purpose by creating substantive new rights or imposing new

legal burdens’ is treated as a substantive change in the law.” Id.

(emphasis added) (quoting Arrow Air, 645 So. 2d at 424).

In this case, there can be no doubt that the imposition of new

burdens of persuasion and proof upon the state under subsection (4) is a

“substantive change in the law” due to the creation of “new legal

burdens.” See Smiley, 966 So. 2d at 334. Requiring the state to go

forward with clear and convincing evidence after the defendant’s initial

prima facie claim is clearly a “new legal burden.” See id. “The

amendment is thus treated as a substantive change in the law, and

therefore does not apply retroactively.” Love v. State, 43 Fla. L. Weekly

D1065, D1066 (Fla. 3d DCA May 11, 2018), review granted, SC18-747,

2018 WL 3147946 (Fla. June 26, 2018).

In Love, the trial court refused to apply the newly enacted subsection

(4) even though the amendment took place before the defendant’s Stand

Your Ground immunity hearing. The trial court applied the burden of

proof applicable before the amendment and found that the defendant did

not meet her burden. Relying on Smiley, the Third District affirmed,

finding that the amendment “did not apply to [the defendant’s] case

because the crime she committed occurred before the amendment’s

effective date, and the statute has no retroactive application.” Id. at

D1065. In the case at bar, unlike in Love, the amendment occurred after

both the immunity hearing and trial. Because the amendment did not

apply in Love, then it certainly does not apply here where the

amendment occurred after the end of all the trial court proceedings.

The Third District further relied on Article X, section 9 of the Florida

Constitution, commonly known as the “Savings Clause,” which provides

that “[r]epeal or amendment of a criminal statute shall not affect

prosecution or punishment for any crime previously committed.” A

“criminal statute” is broadly defined as “an act of the Legislature as an

organized body relating to crime or its punishment . . . defining crime,

treating of its nature, or providing for its punishment . . . [or] deal[ing] in

any way with crime or its punishment.” Love, 43 Fla. L. Weekly at

D1066 (quoting Smiley, 966 So. 2d at 337) (alterations in original).

The Third District concluded that

section 776.032(4) qualifies as a criminal statute because it

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affects whether the State can prosecute a defendant in the

same manner as before subsection (4) was added. If the

amended statute were to apply to [the defendant], she could

not be prosecuted in the same manner as before because the

burden of proof at the immunity hearing would now shift to

the State and the burden would rise to clear and convincing

evidence. Thus, article X, section 9 of the Florida

Constitution does not allow section 776.032 to be applied

retroactively. Smiley, 966 So. 2d at 337 (“[The defense] has a

direct impact on the prosecution of the offense . . .”).

Id. See also Bailey v. State, 43 Fla. L. Weekly D1153, D1153 (Fla. 3d

DCA May 23, 2018) (following precedent in Love and holding that

amendment did not apply retroactively and defendant was not entitled to

new evidentiary hearing); but see Commander v. State, 43 Fla. L. Weekly

D1554, D1555 (Fla. 1st DCA July 9, 2018) (finding subsection (4) applied

to a 2016 incident due to the state’s concession of error on appeal based

on the prosecutor’s agreement at the Stand Your Ground immunity

hearing that the state had the burden of proof); Martin v. State, 43 Fla. L.

Weekly D1016, D1018 (Fla. 2d DCA May 4, 2018) (holding that the 2017

amendment to section 776.032 was procedural in nature and therefore

applied retroactively to the defendant’s case which was pending on

appeal).

We agree with the Third District in Love in its reliance on the Savings

Clause of the Florida Constitution. Under the Savings Clause,

“retroactive application of an amended or repealed statute affecting

prosecution or punishment is unconstitutional.” State v. Pizarro, 383 So.

2d 762, 763 (Fla. 4th DCA 1980). In contrast with “[t]he Ex Post Facto

Clause, which bars retrospective application of a law that disadvantages

a defendant, . . . the Savings Clause . . . bars retrospective application of

a change in law that prejudices the State.” McKendry v. State, 641 So.

2d 45, 49 (Fla. 1994) (Shaw, J., dissenting). Thus, the Savings Clause

differs from the Ex Post Facto Clause since the Savings Clause forbids

retroactive application of legal changes whether beneficial or harmful to

the defendant, as its purpose is to forbid the application of legal changes

that would harm the state.

In addressing a prior version of the Savings Clause that is similar to

the current version, the Florida Supreme Court stated:

The effect of this constitutional provision is to give to all

criminal legislation a prospective effectiveness; that is to say,

the repeal or amendment, by subsequent legislation, of a

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pre-existing criminal statute, does not become effective,

either as a repeal or as an amendment of such pre-existing

statute, in so far as offenses are concerned that have been

already committed prior to the taking effect of such repealing

or amending law.

Raines v. State, 28 So. 57, 58 (Fla. 1900).

For example, under the Savings Clause, the statutory penalty in effect

at the time a crime is committed controls the punishment at sentencing.

Pizarro, 383 So. 2d at 763. This is true even if retroactive application

would be beneficial to the defendant. See Allen v. State, 383 So. 2d 674,

675 (Fla. 5th DCA 1980) (noting that “if the Legislature, in enacting the

Youthful Offender Act had purported to make its maximum punishment

provisions apply retroactively to crimes committed prior to its effective

date, it would have been unconstitutional” under the Savings Clause);

Monsour v. State, 572 So. 2d 18, 19 (Fla. 4th DCA 1990) (stating, in

dicta, that ameliorative retroactive application of amended sentencing

guidelines would violate the Savings Clause). Because the Savings

Clause applies to both the prosecution of crimes as well as their

subsequent punishment, those cases involving only punishment would

apply with equal force to the instant case involving the burden of proof

and persuasion required for a prosecution.

We are also guided by the governing principle of separation of powers

which requires our deference to the legislature when the legislature

clearly states in the text of the statute that “[t]his act shall take effect

upon becoming law.” As our supreme court has recognized, “the

judiciary has an obligation, pursuant to the separation of powers

contained in article II, section 3 of the Florida Constitution, to construe

statutory pronouncements in strict accord with the legislative will.”

Sebring Airport Auth. v. McIntyre, 783 So. 2d 238, 244 (Fla. 2001)

(footnote omitted). “[C]ourts cannot judicially alter the wording of

statutes . . . . A court’s function is to interpret statutes as they are

written and give effect to each word in the statute.” Fla. Dep’t of Revenue

v. Fla. Mun. Power Agency, 789 So. 2d 320, 324 (Fla. 2001).

The effective date of the statute has meaning and represents the will

of the legislature. A statute that provides an unambiguous effective date

is clear and controlling evidence of legislative intent. See State Farm Mut.

Auto. Ins. Co. v. W. Gables Open MRI Servs., Inc., 846 So. 2d 538, 540

(Fla. 3d DCA 2003). In amending the statute, the legislature stated that

“[t]his act shall take effect upon becoming a law,” which occurred when

the governor signed the bill into law on June 9, 2017. Ch. 2017-72, § 1-

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2, Laws of Fla. “[T]he Legislature’s inclusion of an effective date for an

amendment is considered to be evidence rebutting intent for retroactive

application of a law.” Fla. Ins. Guar. Ass’n v. Devon Neighborhood Ass’n,

67 So. 3d 187, 196 (Fla. 2011); see also Walker & LaBerge, Inc. v.

Halligan, 344 So. 2d 239, 241 (Fla. 1977) (“It is a well-established rule of

construction that in the absence of clear legislative expression to the

contrary, a law is presumed to operate prospectively.”).

In conclusion, we find that the amendment to the Stand Your Ground

law, which occurred during the pending appeal and contained an

effective date of June 9, 2017, created a new legal burden by changing

both the burdens of persuasion and proof and therefore was substantive

in nature and did not apply retroactively. As such, we affirm appellant’s

conviction and sentence and certify conflict with Martin and Commander.

Affirmed and conflict certified.

DAMOORGIAN and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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